Pradeep Bhusal v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRADEEP BHUSAL,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-70166
Agency No. A098-532-921
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 18, 2013**
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
Pradeep Bhusal, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider
and reopen. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse
of discretion the denial of motions to reconsider and reopen, and review de novo
FILED
JUN 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Bhusal’s motion to
reconsider where Bhusal failed to identify any error of law or fact in the BIA’s
previous order. See 8 C.F.R. § 1003.2(b)(1). Contrary to Bhusal’s contentions, the
BIA did not apply an incorrect evidentiary standard. See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 823 (9th Cir. 2003) (“in immigration proceedings [t]he sole test for
admission of evidence is whether the evidence is probative and its admission is
fundamentally fair” (internal quotations omitted)).
The BIA properly construed Bhusal’s motion also to be a motion to reopen
in which he submitted new evidence of changed country conditions. See Socop-
Gonzalez v. INS, 272 F.3d 1176, 1180 (9th Cir. 2001) (en banc) (explaining that
“[t]he purpose of a motion to reopen is to present new facts or evidence that would
entitle the alien to relief from deportation” while “[t]he purpose of a motion to
reconsider is not to raise new facts, but rather to demonstrate that the [immigration
judge] or the BIA erred as a matter of law or fact” (emphasis in original)).
The BIA did not abuse its discretion in denying Bhusal’s motion to reopen
as untimely and number-barred where the successive motion was filed more than
three years after his removal order became final, see 8 C.F.R. § 1003.2(c)(2), and

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Bhusal failed to demonstrate a material change in circumstances in Nepal to
qualify for the regulatory exception to the filing deadline, see 8 C.F.R.
§ 1003.2(c)(3)(ii).
It follows that Bhusal’s due process contentions fail. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due
process claim).
To the extent Bhusal seeks review of the agency’s underlying orders denying
relief, we lack jurisdiction because the petition for review is not timely as to those
orders. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.
2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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